In most communities where there is a deed of horizontal division granted by the developer, this deed is what should be considered as the constitutive title or master deeds of the community, incorporating therein the necessary circumstances indicated by Article 5 of the Horizontal Property Law, which states:
The Charter of Constitution of the condominium (ownership by flats or premises) will describe, besides the property as a whole, each one of those units to which a correlative number is assigned. The description of the overall property must express the details required by the mortgage legislation and the services and installations belonging to it. The description of each flat or premises will express its area, boundaries, the floor on which it is located, and any ancillary properties such as garage, attic or basement.
This same charter shall determine the share of participation that pertains to each flat or premises, to be set by the sole owner of the building at the beginning of its sale by flats, by the agreement of all existing owners, by arbitration, or by court order. For this determination, the useful surface area of each flat or premises relative to the total area of the building, its exterior or interior emplacement, its situation, and the use it can reasonably be assumed to make of the common services and installations shall be taken as a basis.
Having analyzed the usual content of the master deeds, we must ask ourselves what happens when there is no master deeds or even any private document from which the existence of these circumstances that necessarily must be regulated in every community can be deduced.
A community of owners always exists when there are private and common elements, so it does not really matter if the master deeds or private document exist. In fact, Article 2 of the Horizontal Property Law expressly states in its section b) that the horizontal property law will apply to those communities that have not granted their constitutive title or master deeds.
The doubts would be as to:
1.- What would be the common and private elements in the community? To determine this, we would have to resort to other means of proof, considering that if the condition of being private is not accredited, it will be considered a common element.
2.- The description of the properties could be made, if necessary, by means of the corresponding proof, so it would not be essential for this data to be predetermined from the beginning.
3.- The lack of determination of a specific participation quota for each private element would lead us to apply subsidiarily what is provided in Article 393 of the Civil Code and consider that all private elements have the same quota, without prejudice to any owner to start legal proceedings so that this coefficients be judicially established according to the criteria indicated in Article 5.
4.- As for statutes and internal regulations, they are not mandatory, so their omission does not generate any problem, applying in full what is provided in the Horizontal Property Law.
It is very common to old communities located in urbanizations where a constitutive title has never been granted, but nevertheless they have their minute book legalized by the Registry or notary, their CIF (Tax Identification Code), their bank account and their participation coefficients recognized in the minutes of owners’ meetings.
In these cases, although some people may doubt about the legality of these communities, they are perfectly legal as long as they share common elements for different private elements, and should be governed by the Horizontal Property Law, as we have indicated.
Our courts even go so far as to recognize the validity and legality of many communities in which there are not even physical elements in common, but simply common rights and obligations, considering that these rights and obligations constitute the common elements of the community in which all private elements participate. These communities are also considered perfectly legal.